Opinion
No. 742 C.D. 2014
10-03-2014
Aliena Kates, Petitioner v. Workers' Compensation Appeal Board (Executive Building Services and Cincinnati Insurance Company), Respondents
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE McGINLEY
Aliena Kates (Claimant) petitions for review from the order of the Workers' Compensation Appeal Board (Board) that affirmed the Workers' Compensation Judge's (WCJ) grant of Executive Building Services' (Employer) termination petition and denial of Claimant's claim petition.
The Board modified the WCJ's determination to reflect a termination date of August 10, 2011, instead of July 26, 2011.
On September 9, 2011, Claimant petitioned for workers' compensation benefits and alleged that on June 3, 2011, she suffered a work-related injury in the nature of a "lumbar disc herniation with radiculopathy" while "lifting garbage out of a can when I felt a pop in my back." Claim Petition, September 9, 2011, at 1; Certified Record (C.R.) at 3. On September 19, 2011, Employer filed an answer and denied all material allegations. Defendant's Answer to Claim Petition, September 19, 2011, at 1-2; C.R. 7-8.
On September 30, 2011, Employer petitioned to terminate benefits and alleged that Claimant fully recovered from her work-related injury as of August 10, 2011. Termination Petition, September 30, 2011, at 1; C.R. at 9. The WCJ consolidated the two petitions.
Claimant described how she was injured on June 3, 2011, "I was taking a trash bag out of the trashcans [sic] that we have to roll around to collect the trash . . . [a]nd when I went to take it out to get it out and set it down, I felt a pop in my back." Hearing Transcript (H.T.), October 25, 2011, at 9; Reproduced Record (R.R.) at 37a. Claimant notified her supervisor of her injury. H.T. at 10; R.R. at 38a. After Claimant concluded her work shift, she went "right to Sacred Heart Hospital emergency room [where] [t]hey only gave me ibuprofen, and that was it." H.T. at 12; R.R. at 40a. At the time of the hearing, Claimant testified that "[r]ight now, my back and hip hurt really bad . . . I can't walk far . . . I can't stand in one spot . . . [j]ust cooking dinner it's a trial for me, just standing there . . . [j]ust everyday life." H.T. at 16; R.R. at 44a.
Claimant presented the medical deposition testimony of Brian Goldberg, M.D. (Dr. Goldberg), a board-certified physiatrist. Dr. Goldberg first examined Claimant on June 28, 2012, and Claimant provided him with a medical history which included the details of her work-related injury. Dr. Goldberg's medical examination revealed:
Tenderness and spasm over the lumbar paraspinals, decreased lumbar range of motion, 30 degrees of flexion,
10 degrees of extension, a positive straight leg rise on the left side, and a positive Lasegue's test, which is raising the left leg with dorsiflexion, the foot as well. And she only tolerated me lifting that leg to about 20 degrees, so very tender with that maneuver.Deposition of Dr. Brian Goldberg (Dr. Goldberg Deposition), September 14, 2012, at 11; R.R. at 168a. Dr. Goldberg's diagnosis was "lumbar disc herniation, lumbago, and based on her systems I termed it radiculopathy, because she said there was symptoms radiating down the leg." Dr. Goldberg Deposition at 12-13; R.R. at 169a-70a.
. . . .
I think it's [spasm found on the lumbar spine] more subjective, because I wrote in my note without trigger point. Usually when I write with trigger points I'm actually palpating a nodule, but I'm relying on her telling me it's tender.
Dr. Goldberg next saw Claimant on July 19, 2011, and his examination revealed "[t]enderness in the left lumbar paraspinals, decreased flexion . . . and positive straight leg raise, now can raise it up to 45 decrees." Dr. Goldberg Deposition at 14; R.R. at 171a. Dr. Goldberg recommended "[s]edentary duty only." Dr. Goldberg Deposition at 15; R.R. at 172a. Dr. Goldberg next saw Claimant on April 23, 2012, and found that "there was no tenderness of the lumbar midline . . . [t]here was tenderness of the lumbar paraspinals, but also over the left sacroiliac joints, and she had groin pain when I internally rotated her left leg." Dr. Goldberg Deposition at 17-18; R.R. at 174a-75a. After the examination, Dr. Goldberg "started to look for other pain generators outside the low back that can cause this being that the CAT scan and MRI did not show significant pathology . . . [s]o I x-rayed her hip and there were no arthritic changes or fractures." Dr. Goldberg Deposition at 18-19; R.R. at 175a-76a.
Dr. Goldberg again saw Claimant on April 30, 2012, and "performed an electrodiagnostic [sic] evaluation of her left lower extremity and lumbar region." Dr. Goldberg Deposition at 19; R.R. at 176a. The result of the test revealed that "[t]here was no conclusive evidence of an ongoing lumbar radiculopathy or pinched nerve, and there were no peripheral nerves in the leg that were trapped." (emphasis added). Dr. Goldberg Deposition at 19; R.R. at 176a. Dr. Goldberg examined Claimant later on that date and diagnosed her condition as "sacroiliitis and low back pain." Dr. Goldberg Deposition at 20; R.R. at 177a. "We discussed that the diagnostic way to identify sacroiliac pain is to inject the joint and see the response." Dr. Goldberg Deposition at 20; R.R. at 177a. Dr. Goldberg saw Claimant on May 11, 2012, and his examination revealed "tenderness in the lumbar paraspinal, but no tenderness over the sacroiliac joint at this time . . . [s]he had groin pain when I internally rotated her left hip consistent with the last exam." Dr. Goldberg Deposition at 21; R.R. at 178a.
Dr. Goldberg again saw Claimant on June 6, 2012, and "[o]nce again, she had groin pain with left hip internal rotation." Dr. Goldberg Deposition at 23; R.R. at 181a. Dr. Goldberg recommended an "[i]nterarticular left hip injection under fluoroscopy . . . [s]o we could put some anesthetic and some steroid in the joint under fluoroscopy and for both diagnostic purposes and therapeutic purposes . . . ." Dr. Goldberg Deposition at 24; R.R. at 181. Claimant returned on June 26, 2012, and stated that "since the injection she no longer had clunking in the left hip and the feeling as if the hip is going to come out, however, her low back pain persists and still radiates to the leg." Dr. Goldberg Deposition at 24; R.R. at 181a. Dr. Goldberg diagnosed Claimant with "[p]ain in the hip, low back pain, [and] lumbar radiculopathy." Dr. Goldberg Deposition at 25-26; R.R. at 182a-83a. Dr. Goldberg opined that Claimant's hip pain and low back pain were both related to the June 3, 2011, work injury. Dr. Goldberg Deposition at 28; R.R. at 185a. Dr. Goldberg concluded that Claimant "clearly is not recovered . . . [and] I feel she is disabled to some degree." Dr. Goldberg Deposition at 27-28; R.R. at 184a-85a.
Employer presented the medical deposition of Thomas DiBenedetto, M.D. (Dr. DiBenedetto), board-certified in orthopedic surgery. Dr. DiBenedetto examined Claimant on August 10, 2011, at which time Claimant provided him with a medical history which included the details of her work-related injury. Dr. DiBenedetto performed a physical exam and found:
She was in no acute distress. She wasn't radiating any pain. She would sit and stand leaning to the right, leaning over to the right side. She had 0 degrees of extension, which means she could just get her spine straight. She had five degrees side bending. She could flex to seven degrees, that's bending over to touch her toes with pain. That's active motion under her control. She could heel and toe walk without difficulty. That's a sign of normal strength. In a position sense her gait was slow. She walked slowly.Deposition of Dr. Thomas DiBenedetto (Dr. DiBenedetto Deposition), February 10, 2012, at 8-9; R.R. at 76a-77a. Dr. DiBenedetto also found "some inconsistencies in her exam, meaning that she could heel and toe walk but had giving way weakness and no spasm . . . [s]o, she did have some excess symptoms for the condition that she was in." (emphasis added). Dr. DiBenedetto Deposition at 10; R.R. at 78a. In layman's terms, Dr. DiBenedetto concluded Claimant had "subjective or complaints that were under her control." (emphasis added). Dr. DiBenedetto Deposition at 10; R.R. at 78a. However, Dr. DiBenedetto did acknowledge that had "L5-S1 protrusion" which was "[s]ome degenerative change." Dr. DiBenedetto Deposition at 12; R.R. at 80a.
Dr. DiBenedetto concluded that Claimant "had a lumbar strain . . . [and that] her prognosis was that she was recovered, which would be a good diagnosis . . . I didn't find anything objectively on her physical." (emphasis added). Dr. DiBenedetto Deposition at 16; R.R. at 84a. Dr. DiBenedetto opined that Claimant had fully recovered from her work-related injury because "[h]er physical examination had nothing objective, her diagnostic, in studies, I didn't see any disc herniation, and the surveillance video showed her normal, 10 days or two weeks before I saw her." (emphasis added). Dr. DiBenedetto Deposition at 16; R.R. at 84a.
Employer also presented the testimony of Larry Bower (Bower), a private investigator. On July 21, 2011, "I initiated surveillance at 7:00 a.m. and I stayed until 1:00 p.m. . . . I did not observe any activity from her residence." Oral Deposition of Larry Bower (Bower Deposition), March 1, 2012, at 12; R.R. at 133a. Bower conducted his surveillance from his vehicle which was situated "approximately a block away from her residence." Bower Deposition at 12; R.R. at 133a. On July 26, 2011, at approximately 11:38 a.m., Bower observed:
[A] female matching the description of the claimant exited her residence with two medium sized dogs. She was holding a leash in her left hand, she then proceeded to cross the street. The dogs appeared to be pulling her, she was holding the leash in her right hand as she went across the street and proceeded to converse with a neighbor who was sitting on the steps on a residence. During this period of time she conversed with the neighbor. At one point she pulled one of the dogs down the steps and then proceeded to bend over slightly at that and discipline the dog with the back end of the leash. After a period of time, she walk [sic] across the street where a male came out of the residence and they proceeded to walk approximately two blocks to a private
residence. She was holding one dog while the other male was holding the other dog. (emphasis added).Bower Deposition at 13; R.R. at 134a.
The WCJ made the following pertinent findings of fact:
2. [Employer] initially issued a Notice of Temporary Compensation Payable dated June 20, 2011, accepting a June 3, 2011 work-related injury in the nature of a lumbar strain . . . .
3. On August 12, 2011, [Employer] issued a Notice Stopping Temporary Compensation and a Notice of Workers' Compensation Denial indicating that 'The employee has not suffered a loss of wages as a result of an already accepted injury.'
4. On September 9, 2011, Claimant filed a Claim Petition alleging a work-related injury of June 3, 2011 in the nature of a lumbar disc herniation with radiculopathy resulting in Claimant's total disability from work from June 3, 2011, onward. (emphasis added).
. . .
6. On September 28, 2011, [Employer] filed a Petition to Terminate Benefits as of August 10, 2012, alleging a full and complete recovery. (emphasis added).
. . . .
8. The Claim and Termination Petitions were subsequently reassigned to this Workers' Compensation Judge, who conducted a full and final hearing on August 21, 2012. Neither Party wished to present any further testimony at the time of the hearing on August 21, 2012.
9. . . . Claimant testified that she continues to have back and hip pain, which limits her ability to stand or walk. Although Claimant had a prior work-related injury, Claimant denied any prior low back injuries and denied any subsequent injuries to her low back. Claimant
testified that she is mostly inactive all day due to her injuries. Claimant admitted that she walks her dogs but insisted that her dogs were not that big and do not pull at all. (emphasis added).
. . . .
11. This Workers' Compensation Judge finds that the video surveillance completely impeaches Claimant's credibility. Claimant's activities in the video are wholly inconsistent with Claimant's testimony as to her abilities. If Claimant had, in fact, sustained any low back injury on June 3, 2011, she did not appear to be limited in any way as of July 26, 2011. (emphasis added).
12. . . . Dr. Goldberg testified that Claimant had small disc protrusions, which he would consider herniations, but this is inconsistent with the findings on the CAT scan of January 27, 2012. Dr. Goldberg also admitted that Claimant's failure to improve with time and rest is another 'red flag' for him. Dr. Goldberg further admitted that Claimant's complaints were "jumping around" which is inconsistent, which makes it 'tough' on the Doctor. Dr. Goldberg did not observe the video surveillance of Claimant. (emphasis added).
13. . . . Dr. DiBenedetto reviewed the surveillance video and commented that it depicted Claimant walking the dogs normally and bending over, with normal motion of her lumbar spine. Dr. DiBenedetto accurately pointed out that Claimant did not show any disability of any kind in the surveillance video. Dr. DiBenedetto felt Claimant sustained nothing more than a lumbar strain based upon Claimant's history, but that Claimant had fully recovered from that injury by the time of his examination. (emphasis added).
14. This Workers' Compensation Judge has considered and compared the expert medical testimony of Dr. Goldberg and Dr. DiBenedetto at length, and although this Judge finds that Dr. Goldberg was being quite genuine, Dr. DiBenedetto's testimony is more persuasive
and, in this instance carries more weight. . . . Although Dr. Goldberg admitted that he is giving his patient the benefit of the doubt, to the extent he relies upon the validity of Claimant's subjective presentation, the Doctor's testimony must be rejected as this Judge does not find Claimant to be credible for the reasons set forth in the foregoing Findings of Fact. On the other hand, Dr. DiBenedetto's testimony is consistent and credible. Dr. DiBenedetto's testimony is also supported by the video surveillance. . . . To the extent Dr. Goldberg's testimony contradicts Dr. DiBenedetto's testimony, Dr. Goldberg's testimony is specifically rejected and Dr. DiBenedetto's testimony is specifically accepted. (emphasis added).WCJ's Decision, January 11, 2013, Findings of Fact (F.F.) Nos. 2-4, 6, 8-9, and 11-16 at 1-4. The WCJ denied and dismissed Claimant's claim petition and granted Employer's termination petition.
15. This Workers' Compensation Judge specifically finds that Claimant did not sustain a lumbar disc herniation with radiculopathy as a result of the work-related injury or that Claimant was in any way disabled as a result of any work-related injury. (emphasis added).
16. This Workers' Compensation Judge also specifically finds that if Claimant actually sustained a lumbar strain as [Employer] accepted, Claimant fully and completely recovered from such an injury on or before July 26, 2011. (emphasis added).
The Board denied Claimant's appeal and concluded:
Upon review, the WCJ did not err in denying Claimant's Claim Petition. At the outset, we will note that our review of the surveillance video is consistent with the WCJ's findings. Because the WCJ rejected Claimant's testimony on the basis that Claimant's activities as reflected in the surveillance video are inconsistent with
her testimony as to her abilities, Claimant was unable to carry her burden of proof . . . . Further, Claimant could not carry her burden because the WCJ rejected Dr. Goldberg's testimony to the extent it was based on Claimant's subjective presentation . . . and accepted Dr. DiBenedetto's contrary testimony . . . .Board's Opinion, April 3, 2014, at 8 and 10. The Board affirmed the WCJ's determination with a modification of the decision in order to reflect a termination date as of August 10, 2011, instead of July 26, 2011.
. . . .
Upon review, the WCJ did not err in granting the Termination Petition. Because the WCJ accepted Dr. DiBenedetto's testimony that Claimant was fully recovered and rejected Dr. Goldberg's testimony to the contrary, Defendant [Employer] was able to meet its burden of proof . . . . (citations omitted and emphasis added).
On appeal, Claimant contends there was no substantial evidence of record to support the WCJ's decision that she made a full and complete recovery. Claimant asserts that the "WCJ's determination was based largely on the surveillance tape, which was simply a snap shot of Kate's [Claimant's] life." Petitioner's Brief at 18. Claimant states that she testified that she walked her dogs which was the basis for the WCJ's finding that she was not disabled. Petitioner's Brief at 18.
This Court's review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, or whether constitutional rights were violated. Vinglinsky v. Workmen's Compensation Appeal Board (Penn Installation), 589 A.2d 291 (Pa. Cmwlth. 1991). --------
The employer bears the burden of proof in a termination petition proceeding to establish that the work injury has ceased. In a case where the claimant complains of continued pain, this burden is met if an employer's medical expert unequivocally testifies that it is his opinion, within a reasonable degree of medical certainty that the claimant is fully recovered, can return to work without restrictions and that there are no objective medical findings which either substantiate the claims of pain or connect them to the work injury. Udvari v. Workmen's Compensation Appeal Board (US Air, Inc.), 705 A.2d 1290, 1293 (Pa. 1997).
Here, the WCJ rejected Claimant's assertion that she experienced continued pain. The WCJ, as the ultimate finder of fact in workers' compensation cases, has exclusive province over questions of credibility and evidentiary weight, and is free to accept or reject the testimony of any witness, including a medical witness, in whole or in part. General Electric Co. v. Workmen's Compensation Appeal Board (Vasamaki), 593 A.2d 921 (Pa. Cmwlth.), petition for allowance of appeal denied, 600 A.2d 541 (Pa. 1991). This Court will not disturb a WCJ's findings when those findings are supported by substantial evidence. Nevin Trucking v. Workmen's Compensation Appeal Board (Murdock), 667 A.2d 262 (Pa. Cmwlth. 1995).
Pursuant to Udvari, Employer was required to prove through Dr. DiBenedetto's testimony that Claimant was fully recovered from her work-related injury in order to terminate benefits. This Court concurs with the Board's determination that Employer presented sufficient medical testimony that Claimant fully recovered:
[Employer] presented the testimony of Thomas DiBenedetto, M.D., board-certified in orthopedic surgery . . . . Upon examination, Claimant had zero degrees of extension, five degrees of side bending, and seven degrees of extension. (Benedetto, p. 8). A lumbar MRI was normal. (DiBenedetto, p. 12). Dr. DiBenedetto saw the surveillance video, and opined that it was inconsistent with his examination, as Claimant demonstrated normal motion of the lumbar spine in the video, and showed no disability of any kind. (DiBenedetto, p. 13). Dr. DiBenedetto opined that it was significant that Claimant did not get any better at all following her work injury, as usually, a patient will get somewhat better over time even without treatment. (DiBenedetto, p. 14). Based on Claimant's history of a specific incident of lifting, Dr. DiBenedetto opined that Claimant sustained a lumbar strain. DiBenedetto, p. 15). Dr. DiBenedetto opined that Claimant was fully recovered from any injury she sustained in the work incident, noting that he did not make any objective findings upon his examination, that the MRI merely showed some degenerative changes, and the surveillance video showed there was nothing wrong with her. (DiBenedetto, p. 16). (emphasis added).Board Opinion at 6-7.
Dr. DiBenedetto's testimony supports the WCJ's finding that Claimant was fully recovered and as a result the WCJ properly granted Employer's termination petition.
Claimant also contends that the WCJ erred when he denied her claim petition. Specifically, Claimant asserts that "[t]he evidence shows that . . . [Claimant] suffered a low back injury . . . and a hip injury . . . [and] . . . [Dr. Goldberg] opined that the . . . [Claimant] had sustained a hip injury and a low back injury . . . based on the diagnostic testing [and] . . . that . . . [Claimant] never had any prior problems with her back or hip." Petitioner's Amended Brief at 20.
In a claim petition, the claimant bears the burden of proving all elements necessary to support an award. Innovative Spaces v. Workmen's Compensation Appeal Board (DeAngelis), 646 A.2d 51 (Pa. Cmwlth. 1994). To sustain an award, the claimant has the burden of establishing that she suffered a work-related injury and this injury resulted in disability. Under Innovative Spaces, the claimant also has the burden to prove that "the injury continues to cause disability throughout the pendency of the claim petition . . . ." Id. at 54. When there is no obvious casual connection between the injury and the work-related cause, unequivocal medical testimony is necessary to establish such connection. Cromie v. Workmen's Compensation Appeal Board (Anchor Hocking Corp.), 600 A.2d 677 (Pa. Cmwlth. 1991). Additionally, the WCJ must find such medical testimony credible in order for a claimant to prevail. Cardyn v. Workmen's Compensation Appeal Board (Heppenstall), 534 A.2d 1389 (Pa. 1987).
Here, the WCJ found that Claimant did not sustain a lumbar disc herniation with radiculopathy as a result of the work injury or that she was disabled as a result of the work-related injury of June 3, 2011. See WCJ's Decision, F.F. No. 15 at 4. This finding was based on the WCJ's finding that Dr. Goldberg's medical testimony was not credible. As the Board noted:
Dr. Goldberg testified that when an MRI and a CT scan did not reveal any significant lumbar pathology, he began to look for other significant pain generators. (Goldberg, p. 18). . . . Dr. Goldberg diagnosed Claimant with left hip pain, low back pain, and lumbar radiculopathy. (Goldberg, pp. 25-26). Dr. Goldberg was at a loss to explain the back symptoms with the normal EMG, CT
scan, and lumbar MRI. (Goldberg, p. 26). Dr. Goldberg opined that Claimant's low back and hip symptoms are both related to the June 3, 2011 work injury, and that Claimant is disabled as a result. (Goldberg, pp. 26-28). He further opined that Claimant was not fully recovered. (Goldberg, p. 27). On cross examination, Dr. Goldberg acknowledged that Claimant did not make any complaints related to the left hip or sacroiliac area until April 23, 2012. (Goldberg, p. 33). Dr. Goldberg acknowledged that there were "red flags" at Claimant's first visit because there was tenderness to even touching the skin and a severely limited range of motion, noting that at the first examination, he "was suspicious." (Goldberg, pp. 42-43). At the first visit, Dr. Goldberg had observed only subjective complaints, nothing objective, and was considering that there was symptom magnification. (Goldberg, pp. 44-45). Dr. Goldberg also acknowledged that Claimant's symptoms were inconsistent, which was another red flag. (Goldberg, p. 55). (emphasis added).Board Opinion at 5-6.
The WCJ has the authority to accept any medical evidence in whole or in part. The WCJ rejected Dr. Goldberg's testimony that Claimant's disability continued which the WCJ was free to do.
Accordingly, this Court affirms.
/s/_________
BERNARD L. McGINLEY, Judge ORDER
AND NOW, this 3rd day of October, 2014, the order of the Workers' Compensation Appeal Board in the above-captioned matter is affirmed.
/s/_________
BERNARD L. McGINLEY, Judge